Municipality Not Liable Under RSA 507-B:2 For Negligence of Firefighters
Since Firefighting Operations Did Not Consitute "Ownership, Occupation,
Maintenance or Operation" of the Premises
 Farm Family Casualty Insurance Company as Subrogee of Marc Janetos and Deborah Janetos v. Town of Rollinsford , No.2006-791 (July 17, 2007)

Facts:   The Rollinsford Fire Department responded to a fire in a garage owned by Marc and Deborah Janetos. After extinguishing the blaze, the firefighters restored electrical service to the building but failed to isolate the damaged portion of the structure, resulting in a second fire which destroyed both the garage and the main structure of the home.

Farm Family, which provided homeowner's coverage to the Janetoses, paid the claim and then brought a subrogation action against the Town of Rollinsford.

The Town filed a motion to dismiss arguing that it was protected under RSA 507-B:2, which allows suits against municipalities only for injuries "arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises." The trial court granted the Town's motion to dismiss, ruling that the fire department's presence at the premises in order to extinguish the fire did not constitute "occupation" or "maintenance" of the home under the statute. Farm Family appealed the dismissal of its subrogation action.

Held:     Affirmed.

The Court held that the statute limited municipal liability to premises "owned, occupied, maintained or operated" by the Town, rejecting Farm Family's argument that the term "all premises" included any premises whether or not owned, occupied, maintained or operated by the Town.

Farm Family conceded that the Town did not own or maintain the premises, but argued that the Town "occupied" or "operated" the property when it seized and controlled the property in order to extinguish the fire. The Court, however, ruled that the term "occupation" as used within the statute was intended to denote an ownership-like situation rather than a temporary presence. The Court also held that the fire department's operation of equipment on the property or conducting firefighting operations on the premises was not equilavent to operating the property itself within the meaning of the statute.

Regards,

Mike Wallenius

603-634-4300
mwallenius@gss-lawyers.com